The Religious Land Use and Institutionalized Persons Act of 2000

The Impact on People in Prison

Thanks to basic Constitutional protection and federal legislation, prison inmates today enjoy unprecedented religious liberty. The challenge for prison administrators is to balance this liberty with legitimate penological needs such as safety and security. This challenge is particularly acute in light of the growing religious and cultural diversity of Tennessee prison inmates, and the explosion in the inmate population in the last 25 years. The variety of religions and religious needs of U.S. inmates has never been greater, and there is no end in sight.

The focus of this article is the impact of the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. 2000 cc, et seq. (RLUIPA), on incarcerated persons. The land use aspects of RLUIPA are beyond the scope of this article and will not be addressed.

The History of Religion in U.S. Prisons

Religion has been important in U.S prisons and jails since colonial times. As early as 1691, Gov. William Penn, a devout Quaker, pushed for passage of the Great Law in the Colony of Pennsylvania. This law provided for humane conditions in Philadelphia's Walnut Street Jail, America's first penitentiary.[1]

An overriding goal of the Walnut Street Jail was that inmates would spend long hours in their cells alone in silence, reading the Bible. The theory was that inmates would come to see the error of their ways and pray for God's forgiveness; in short, they would become penitent for their sins; hence the term "penitentiary." In what became known as the Pennsylvania system, inmates not only had religious rights, they had religious duties. Exposure to Christian precepts, and the firm belief that this would lead to rehabilitation, was an integral part of why inmates were locked up. This emphasis on religion in America's prisons and jails was not unique to Pennsylvania. It continued in the colonies throughout the 17th and 18th centuries, and it remained following the formation of the United States and ratification of the Constitution in 1789.[2]

Overview of the U.S. Prison System

On June 30, 1987, a total of 585,084 people were incarcerated in U.S. prisons. By Dec. 31, 2007, that number had skyrocketed to 1,596,127. When the 723,121 inmates in jails are added, the total was 2,319,258. The U.S. is number one in the world in absolute numbers of inmates and incarceration rate. Elected officials and prison administrators have struggled to accommodate this growth, and the problems that come with it.[3]

Religious Diversity in Tennessee Prisons

Compounding the challenge of jail and prison population growth is increasing religious diversity among inmates. Just as the free world is becoming more religiously diverse, prison inmate populations are, too. According to data provided by the Tennessee Department of Correction, as of June 9, 2008, the religious preferences selected by Tennessee's 19,332 inmates were as shown in the following table:

Religious Preferences of Tennessee Inmates

Christian (various Protestant denominations)

67.94%

No Preference/atheist/agnostic

17.32%

Islamic, Black Muslim, Mohammedan

2.84%

Christian (Roman Catholic)

2.81%

Agnostic, Atheist

.20%

Wicca

.17%

Mormon

.16%

Native American

.13%

Buddhist

.12%

Jewish (Orthodox, Conservative, Reformed)

.10%

Spiritualists

.06%

Unitarian

.04%

Hindu

.04%

BahÃ¡'Ã­

.03%

Rastafari

.03%

Satanist

.03%

Christian Identity

.02%

Eastern Orthodox (Greek)

.02%

Odinist

.02%

Christian Science

.01%

Friends

.01%

Mennonites

.01%

Taoist

.01%

Thelema

.01%

Inmates not responding to the question

7.87%

Although located in the midst of the Bible Belt, Tennessee inmates represent 19 separate faith groups. While the number of non-Christian inmates is small, all inmates enjoy unprecedented legal protection of their religious rights.

The Law Relating to Inmates' Religious Rights

The law relating to inmates' religious rights derives from four basic sources: (i) the U.S. Constitution and state constitutions, (ii) federal and state legislation, (iii) federal and state case law, and (iv) administrative regulations, policies and procedures.

Constitutional Law

The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..." (emphasis added). Through selective incorporation, the Supreme Court has held this language also applies to the states. In Cruz v. Beto,[4] the Court held that a Buddhist prison inmate in Texas retained his religious rights provided by the First Amendment, notwithstanding his incarceration. Thus, the supreme law of the land is that neither Congress nor the states may establish an official religion, nor prohibit persons (including prison inmates subject to reasonable prison rules and regulations) from exercising their religious beliefs.

Statutory Law

The inherent tension between the Establishment Clause and the Free Exercise Clause of the First Amendment has led to extensive legislation and litigation. In 1993, a coalition of conservative and liberal members of Congress passed the Religious Freedom Restoration Act (RFRA).[5] Section 3(b) of RFRA states that "government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person " (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest" (emphasis added).

RFRA was passed after extensive debate and over the objections of all 50 state commissioners of corrections and other experts in penology. The concern of the commissioners and others was that the Act would lead to frivolous lawsuits by prison inmates. These concerns proved to be true. As the trial court in Cutter v. Wilkinson,[6] noted, "According to defendants, the number of religions espoused by Ohio prisoners proliferated under RFRA, and the religions in question often demanded distinctly unorthodox religious services and items, such as martial arts classes. Furthermore, considerable amount of state resources were consumed addressing prisoner litigation efforts."

The concern that RFRA would result in frivolous inmate lawsuits was addressed by Congress in the Prison Litigation Reform Act of 1995 (PLRA).[7] The stated goal of PLRA was to curb the number of frivolous lawsuits filed by prisoners in federal court. To further this end, Section 7(a) of PLRA requires a prisoner to exhaust administrative remedies before filing a lawsuit asserting violation of the prisoner's Constitutional rights, including religious rights under the First Amendment.

Congress passed RFRA in 1993 to express its disagreement with the Supreme Court's decision in Employment Division v. Smith.[8] In Smith, the Court had held that the government may burden religious practices merely by showing a rational basis for the burden. In that case, a rational basis was shown for denying government benefits to smokers of peyote who claimed they smoked it for religious reasons. In RFRA, Congress required the government to prove a compelling interest, rather than a rational basis, for burdening a religious practice.

It is much harder for the government to prove a compelling interest for an action than to prove the action merely has a rational basis. Thus, under RFRA Congress enhanced religious freedom by raising the standard the government must meet before burdening religious practice. In 1997, however, the Supreme Court found RFRA to be unconstitutional. In City of Boerne v. Flores,[9] the Court held that in applying RFRA to the states, Congress had exceeded its authority, thus reestablishing the rational basis test in state prisons. Today RFRA applies to federal prisons, but not to state prisons.

In response to the ruling in Flores and with virtually no debate, Congress passed RLUIPA in 2000. The purpose of RLUIPA was to go back to the compelling governmental interest standard set out in RFRA. Section 2000cc-1(a) of RLUIPA states that "no government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden of that person " (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." (Emphasis added). Section 2000cc-5(7) of RLUIPA states, "The term 'religious exercise' includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief."

The similarity between the language of RFRA and RLUIPA is clear. By enacting RLUIPA, Congress reestablished the RFRA standards, making it more difficult for prison officials to burden religious practices by inmates. However, Section 2000cc-2(e) of RLUIPA states that it was not intended to amend or repeal the PLRA. Thus, the exhaustion of administrative remedies requirement applies to RLUIPA claims.

Case Law Under the First Amendment

Inmates wishing to file suit alleging violation of their religious rights have the option of filing under the First Amendment, under RLUIPA, or under both. RFRA also remains an option for inmates in federal prisons. As a practical matter, most inmate suits pertaining to religion assert violations of both First Amendment and RLUIPA provisions. However, the emphasis is on RLUIPA due to the higher standard prison officials must meet in order to prevail in RLUIPA cases.

To prevail in First Amendment cases, inmates must meet the standards set out by the Supreme Court in the case of Turner v. Safley.[10] In Turner, the Supreme Court held a prison regulation which impinges on an inmate's constitutional rights is valid if it is reasonably related to legitimate penological interests. The Court in Turner went on to list several factors to be considered in determining the reasonableness of prison regulations and actions of officers: (1) whether a "valid, rational connection" between the regulation and the legitimate governmental interest, which governmental interest must be neutral, (2) whether alternative means of exercising the right that remain open to the inmate, (3) whether accommodating the right will infringe on the rights of guards or other inmates, or on the allocation of prison resources, and (4) whether there are alternative methods of accommodating the inmates' requests at minimal cost to valid penological interests. For a concise statement of the manner in which a First Amendment case proceeds, see Section B, 1 in Kay v. Bemis.[11]

Case Law Under RLUIPA

Constitutionality of RLUIPA. Perhaps the most significant RLUIPA case to date is Cutter v. Wilkinson.[12] In 2001 the United States District Court for the Southern District of Ohio decided this consolidated case brought by inmates housed in various Ohio prisons. The plaintiffs alleged violations of RLUIPA by the Ohio Department of Rehabilitation and Corrections (the ODRC) in that the ODRC had refused to recognize the plaintiffs' nontraditional religions. These religions included the Church of Jesus Christ Christian, a sub-denomination of Christian Identity, Asatru and Wicca. The plaintiffs also claimed RLUIPA violations due to the prison's (i) denial of access to religious literature and items necessary to practice their religions, (ii) denial of the opportunity to conduct religious services, (iii) denial of the opportunity to conform their dress and appearance to that required by their religion, (iv) denial of a prison chaplain trained in, and dedicated to, their religion, and (v) retaliation by prison officials as a result of attempts to practice their religion. In their response, the defendants argued that RLUIPA was unconstitutional.

In Gerhardt v. Wilkinson[13] the District Court found RLUIPA to be constitutional and the defendants appealed. In 2003 the U.S. Court of Appeals for the Sixth Circuit found RLUIPA to be unconstitutional and the plaintiffs appealed.[14] In May of 2005 the U.S. Supreme Court found RLUIPA to be constitutional and the case was remanded for further proceedings.[15] In September 2005, the U.S. Court of Appeals for the Sixth Circuit denied the remaining arguments on the constitutionality of RLUIPA and remanded the case for further proceedings.[16] The case is now pending in the District Court in Ohio.

Inmates and prison officials throughout the Sixth Circuit and nationwide are closely watching the Cutter case. The facts of the case provide an excellent opportunity for the courts to give much needed clarity and guidance to prison officials. Guidance is needed on the general application of RLUIPA and the specific application of RLUIPA to minority religions.

In reaching its decision that Section 2000cc-1(a) of RLUIPA is constitutional, the Supreme Court in Cutter made several significant observations:

Legislative History and Intent. The Court noted that prior to enacting RLUIPA, Congress held three years of hearings finding "frivolous and arbitrary' barriers to institutionalized person religious exercise."[17] The Court stated that "RLUIPA thus protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion."[18] The Court noted that Congress enacted RFRA (the forerunner to RLUIPA) to "secure redress for inmates who encountered barriers to their religious observance."[19]

Deference to Prison Officials. The Court observed that Congress anticipated courts would show due deference to the experience and expertise of prison and jail administrators in determining issues such as "compelling governmental interests" and "least restrictive means."[20]

Compelling Governmental Interests. The Court noted that "context matters" in determining whether the compelling governmental interest standard has been met.[21] The Court observed the need of institutions to maintain prison order and safety and that Congress anticipated deference to prison regulations necessary to maintain "good order, security and discipline, consistent with consideration of costs and limited resources," and in Note 13, the Court stated that "prison security is a compelling state interest ..." [22]

Sincerity of Belief. In Note 13, the Court stated, "Although RLUIPA bars inquiry into whether a particular belief or practice is 'central' to a prisoner's religion ... the Act does not preclude inquiry into the sincerity of a prisoner's professed religiosity."[23]

Governmental Neutrality on Religion. In discussing the tension between the Establishment Clause and the Free Exercise Clause of the First Amendment, the Court noted the judicial struggle over the years to find a neutral course between the two; and that "there is room for play in the joints" between the two clauses.[24] But the need for neutrality does not preclude the government from imposing some limitations on religious exercise. The Court said, "We do not read RLUIPA to elevate accommodation of religious observances over an institution's need to maintain order and safety."[25]

Substantial Burden. RLUIPA does not define "substantial burden." In Adkins v. Kaspar,[26] the Fifth Circuit stated that for RLUIPA purposes, a substantial burden on a religious exercise can result from governmental pressure on an inmate to significantly modify religious behavior or to significantly violate religious beliefs. The court noted that the test must be applied on a case-by-case, fact-specific basis. The court found that failure to provide kosher meals to a Jewish inmate did not substantially burden his religious exercise and that the state of Texas had a compelling governmental interest in maintaining good order and controlling costs. Plaintiff was one of approximately 165 practicing Jewish inmates out of a total population of 145,000. The cost of kosher meals was estimated to be 12 to 15 dollars per day; non-kosher meals cost $2.46 per day.

In Washington v. Klem,[27] the Third Circuit noted differences among the circuits in defining "substantial burden" for RLUIPA purposes. The court suggested that for RLUIPA purposes, a substantial burden exists when "a follower is forced to choose between following the precepts of his religion and forfeiting benefits otherwise generally available to other inmates versus abandoning one of the precepts of his religion in order to receive a benefit." The Third Circuit suggested this test as an alternate to the test set out by the Fifth Circuit in Adkins. The Third Circuit found that a restriction by the Pennsylvania Department of Correction to only 10 books in an inmate's cell substantially burdened his religious exercise.

Burden of Proof. In Mayfield v. Texas Department of Criminal Justice,[28] the Fifth Circuit referred to Adkins v. Kaspar,[29] in discussing the burden of proof in RLUIPA cases. The court noted that RLUIPA cases begin with the inmate having the burden of proving (i) that the burdened activity is a "religious exercise," and (ii) that the burden is "substantial." The plaintiff must also show that the belief is sincerely held (see Cutter v. Wilkinson).[30] If the plaintiff is successful, the burden shifts to the government to prove (i) that the burden is supported by a compelling interest, and (ii) that the burden is the least restrictive means of carrying out that interest.

Statute of Limitations. In Couch v. Jabe,[31] the District Court discussed the statute of limitations in RLUIPA cases. The court noted that while RLUIPA does not contain a statute of limitations, 28 U.S.C. 1658 provides a four-year statute for federal civil actions arising under Acts of Congress enacted after Dec. 1, 1990.

Failure to Plead RLUIPA. In Alvarez v. Hill,[32] the Ninth Circuit held failure to specifically plead RLUIPA claims does not bar a plaintiff from asserting those claims, if "fair notice" of the claims has been provided to the government. In support of its conclusion, the court cited the Cutter case, which refers to RLUIPA's "manifest purpose of protecting institutionalized persons who are unable freely to attend to their religious needs."[33] In addition, the court cited Greene v. Solano County Jail, that "no longer can prison officials justify restrictions on religious exercise by simply citing to the need to maintain order and security in a prison. They must demonstrate that they actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice."[34]

Attorneys' Fees and Costs. In Northern Cheyenne Tribe v. Jackson,[35] the Eighth Circuit upheld the statutory provision that grants district courts the discretion to award attorneys' fees to the prevailing party in RLUIPA cases. See 42 U.S.C. 1988(b). The Sixth Circuit addressed this question in DiLaura v. Township of Ann Arbor.[36] See Note 1 at the end of DiLaura which cites Rule 54(d) of the Rules of Civil Procedure that "costs are to be awarded as 'of course' to the prevailing party."[37]

Damages. Section 2000cc-2(a) of RLUIPA provides that "a person may assert a violation of this chapter as a claim or defense in a judicial proceeding and obtain appropriate relief against a government."[38] In a lengthy opinion, the court in Van Whye v. Reisch,[39] noted a wide range of damages may be available under RLUIPA, including injunctive relief, monetary damages, nominal damages, declaratory relief, and possibly punitive damages. However, the court observed a significant division among the circuits as to whether claims for monetary damages are allowed under RLUIPA against persons in their individual versus their official capacity. Also see Mayfield v. Texas Department of Criminal Justice.[40] The question of appropriate damages under RLUIPA continues to evolve, and practitioners are cautioned to check the most current case law when drafting pleadings.

Immunity. Government officials often claim immunity or qualified immunity in First Amendment and RUIPA cases. Officials sued in their official capacities generally have immunity from monetary damages under Hafer v. Melo.[41] However, officials sued in their individual capacities only have qualified immunity. In Couch v. Jabe,[42] the court summarized the three-step analysis a court must follow to overcome an official's qualified immunity. The court must find (i) that the plaintiff's allegations, if true, establish a constitutional violation, (ii) that the constitutional right was clearly established at the time of the alleged violation, and (iii) that a reasonable person in the official's position would have known that his conduct would violate that right. See also Mayfield v. Texas Department of Criminal Justice.[43]

Miscellaneous Case Law

Much of the litigation pertaining to inmates' religious rights involve diet, clothing, personal grooming, personal property items needed for religious exercises, prayer oil, prayer rugs, the right to worship in groups, the right of individual inmates to preach or to lead worship, sweat lodges, and smoking. Many courts have ruled in favor of prison restrictions in these areas in deference to prison officials' opinions that such restrictions foster prison safety and security (See Dvorske).[44] Other courts have ruled in favor of inmates, thereby creating a dynamic, unpredictable atmosphere in the world of religion in prison.

Numerous RLUIPA cases are wending their way through the federal system. Many cases are resolved at the district court level on motions for summary judgment. However, as the Fifth Circuit noted in Mayfield v. Texas Department of Criminal Justice,[45] deferring to the expertise of prison officials "does not mandate summary judgment in favor of prison regulators in all cases."[46] Other cases are decided on the merits and then appealed with different results in different Circuits. Until more cases are determined on the merits and splits between the Circuits are resolved, RLUIPA uncertainty will continue. Practitioners are well-advised to check the most current cases pertaining to the issue at hand, even to the day of trial.

Defining Religion

The threshold question in all First Amendment and RLUIPA cases is whether religion is at issue. If the rights being infringed are not "religious," neither the First Amendment nor RLUIPA come into play (see Ritter).[47] For example, when the inmate in Doty v. Lewis[48] claimed his religion, The Jack Daniels Faith, required him to consume a fifth of whiskey every week, the court was quick to throw out the case. While the inmate's claim is humorous, the question remains: How do courts decide whether an inmate's claim is religious and therefore protected?

In determining whether an inmate's claim involves religion, courts generally do not evaluate the truth, plausibility or validity of the beliefs at issue. Rather, as the Supreme Court noted in Peterson v. Wilbur Communications Inc,[49] courts are called to look at whether the belief functions as religion in the individual's life; is the belief "sincerely held?" Indeed, to be protected as religious, a belief does not have to include faith in a Supreme Being or an afterlife, and atheism has been recognized as a religion. In Kaufman v. McCaughtry,[50] the Seventh Circuit noted at p. 10 that the touchstone of the Establishment Clause is "the principle that the First Amendment mandates government neutrality between religion and religion, and between religion and non-religion." Following this reasoning, the court held an inmate's First Amendment right to practice his religion was violated when Wisconsin prison officials refused to allow him to form an inmate group to study and discuss atheism.

In his concurring opinion in Malnak v. Yogi,[51] Judge Adams set out three indicia of religion. While these guidelines have not been adopted by the Supreme Court, five Circuits have adopted them as helpful in determining whether a claim is religious and therefore entitled to protection. Judge Adams suggested that courts look at (i) the "nature" of the ideas involved (i.e., the meaning of life, moral issues of right and wrong, humans' role in the universe, and similar ultimate questions), (ii) the "comprehensiveness" of the beliefs (i.e., a single topic will not suffice, the beliefs must be broader in scope), and (iii) whether there are "external signs" involved similar to those found in accepted religions (e.g., ceremonies, holidays, and special texts).

The Tenth Circuit Court of Appeals has adopted the Malnak guidelines. In addition, in United States v. Meyers,[52] the Tenth Circuit developed an extensive list of additional indicia of religion. In denying an inmate's RFRA claim that he should be recognized as a minister in the Church of Marijuana, the court listed five factors, and numerous sub-factors to be considered. In addition to the Malnak indicia, these factors include whether the putative religion has a key founder, holidays, special rituals, diet and clothing.

Policies and Procedures

To guide prison administrators through the legal complexities of inmates' religious rights, administrative policies and procedures are promulgated. The statutory authorization for these policies and procedures in Tennessee is Tenn. Code Ann. 4-3-601, et seq. Pursuant to that authority the Commissioner of Correction has established Policy # 118.01, pertaining to inmate religious programs. A copy of this policy may be found at www.state.tn.us/correction/pdf/118-01.pdf. Practitioners are well-advised to become familiar with this policy, and with institution-specific policies and procedures promulgated by the wardens in each of the sixteen prisons across Tennessee.

Faith-Based Organizations

In January 2001 President George W. Bush established the White House Office on Faith-Based and Community Initiatives, the purpose of which was to help religious organizations to receive government contracts and funding. The previous year Congress had passed RLUIPA, the purpose of which was to enhance the right of prison inmates to exercise their religious faith. A result of these two events was the reemergence and revitalization of faith-based groups working in prisons. Prison Fellowship, founded by Chuck Colson in 1976, was a leader in the development of new faith-based prison programs and initiatives.[53]

Faith-based programs in public prisons have been the subject of some criticism. Critics question whether these programs, which are frequently oriented toward conservative Christianity, violate the Establishment Clause. A recent case dealing with this issue is Americans United for Church and State v. Prison Fellowship Ministries.[54] The District Court found the State of Iowa had violated the Establishment Clause because of the excessive entanglement of government in religion and ordered Prison Fellowship to repay $1,529,182.70 to the State. The payments had been received by Prison Fellowship for running a Christian-based prerelease program called Inner Change in an Iowa prison. On appeal, the Eighth Circuit affirmed the finding of unconstitutional entanglement of religion and government, and provided guidelines for future programs to avoid such entanglement, but reversed the order to repay the funds.[55]

Conclusion

Things are in flux. Thanks to RLUIPA and the explosion in the inmate population, in terms of size and diversity, religion in prisons in Tennessee and across the nation has never been more dynamic or uncertain.

Many in prison and out call for clarity and simplicity in the laws and policies regulating religious practices by prison inmates. The author agrees. These laws should be written clearly and simply. Unfortunately, the subject matter does not lend itself to simple answers and crystal clarity. The concepts of faith, sincerity of belief, and religious practice are simply too difficult to define. They are too subjective and personal.

Religion in prison is a complex issue which is becoming more complex. Those working in this area are encouraged to become comfortable with uncertainty and change. The simplicity of the past is gone, and won't likely be seen again.

RONALD G. TURNER is the director of religious Services for the Tennessee Department of Correction. He graduated from Vanderbilt Law School in 1973 and practiced law in Nashville for more than 20 years. From 2000 to 2007 he was as an assistant professor of criminal justice at Cumberland University in Lebanon. In 2008 he received his Ph.D. in public administration from Tennessee State University where his dissertation was on religion in prison. He holds a masters of theological studies from Vanderbilt Divinity School and a masters in organizational management from Trevecca Nazarene University. This article is derived from written materials prepared for his TennBarU Web presentation on July 30, 2008.